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Sarah Jane Hughes
University Scholar and Fellow in Commercial Law
(812) 855-6318

David Fidler
Director, IU Center on American and Global Security
(812) 855-6403

Last modified: Wednesday, March 11, 2009

Book advises attorneys on handling national security letters

March 11, 2009

BLOOMINGTON, Ind. -- A new book by Indiana University Maurer School of Law Professors David Fidler and Sarah Jane Hughes aims to help attorneys navigate the complex process of receiving, reviewing and responding to national security letters. The American Bar Association is publishing Responding to National Security Letters: A Practical Guide for Legal Counsel this week.

The federal government issues NSLs to obtain information from banks and other financial institutions, telephone companies, Internet service providers, and consumer credit reporting agencies when conducting national security, counter-espionage and counter-terrorism investigations. The authority to use NSLs has been in place for decades, but changes made in the PATRIOT Act in 2001 increased the federal government's ability to issue them.

"Responding to National Security Letters: A Practical Guide for Legal Counsel" is authored by IU Maurer School of Law professors David P. Fidler and Sarah Jane Hughes.

"Although the power to use national security letters has been exercised for a long time, they only became prominent and controversial after 9/11," Hughes said. "Since then, the government has issued hundreds of thousands of these letters, and according to the Department of Justice's inspector general, often in ways that did not conform with legislative requirements."

Under the provisions of the PATRIOT Act, recipients of NSLs could not disclose them to legal counsel under strict non-disclosure requirements. Successful court challenges to the amended NSL rules led Congress to change the law to allow recipients to disclose NSLs to their legal counsel. However, because of the prior non-disclosure requirements, few lawyers had seen, let alone handled, such letters.

"The legal and practical challenges of handling a national security letter are significant, and we crafted this book to provide legal counsel with a comprehensive yet easy-to-understand guide through the thicket of issues and problems receiving such letters creates," said Fidler.

The project originated in the ABA's Cyberspace Law Committee, of which Hughes is a member. Fidler joined the effort and made it part of the research agenda of the Indiana University Center on American and Global Security, which he directs. Fidler and Hughes recruited four Indiana Law students who provided assistance in reviewing every aspect of the law of NSLs, ranging from court decisions to heavily redacted documents released by the federal government.

"The students were an integral part of the research process. Without their heavy lifting, we would never have reached the end of this project," Hughes said.

Christopher Slobogin, the Milton Underwood Professor of Law at Vanderbilt University Law School, said the book will clarify a convoluted subject.

"This book is an indispensable guide to understanding how these quasi-subpoenas work and the proper method of responding to them," Slobogin said.

Hughes and Fidler said they hope the book will inform citizens about the delicate balance between the government's need to protect national security and its responsibility to respect individual privacy and civil liberties.

"The book is about the rule of law in two senses," Fidler said. "We want to help recipients of NSLs to comply with federal law effectively and efficiently. But the book touches on larger rule-of-law questions that engage the search for equilibrium between a democracy's national security needs, and the people's rights and expectations concerning personal information."

Fidler is the James Louis Calamaras Professor of Law and director of the IU Center on American and Global Security. Hughes is a University Scholar and Fellow in Commercial Law and has worked on financial privacy issues since 1974, including pro bono work with privacy and consumer groups.